MATUKIRE v MEDICINES CONTROL AUTHORITY OF ZIMBABWE 2012 (1) ZLR 29 (S)

Flynote

Interpretation of statutes — permissive powers — power given to regulatory authority to license pharmacists and to cancel or suspend licences — such power necessarily including power to issue warning that future breach of law may result in cancellation

D Medicine — pharmacist — breach of requirement to keep premises under continuous personal supervision — not necessary to for matter to be referred to Pharmacists Council in terms of Health Professions Act — permissible for Medicines Control Authority to deal with matter in terms of licensing laws

E Words and phrases — "continuous" — "supervision" — "continuous personal supervision"

Headnote

The appellant was a pharmacist by profession and ran a pharmacy. He had a manager who was also a pharmacist. An inspector with the Medicines Control Authority of Zimbabwe visited the premises on a routine inspection. He found the premises operating without a pharmacist, neither the appellant nor the manager being present. When the inspector revisited the pharmacy a day or two later, the appellant explained that he had been out at his bank for about 10 minutes. The appellant's response was tabled before the Licensing and Advertising Committee of the respondent. After considering the matter the Committee decided to give the appellant a final warning to desist in future from leaving the pharmacy unsupervised in contravention of s 55(1)(b) of the Medicines and Allied Substances Control Act [Chapter 15:03]. The appellant in due course appealed to the Administrative Court, arguing that the respondent was not empowered to conduct what was clearly a disciplinary hearing and issue a final written warning against the appellant. Instead, the respondent should have referred the case to the Pharmacists Council of Zimbabwe for the necessary disciplinary action to be taken in terms of the Health Professions Act [Chapter 27:19]. The court dismissed his appeal on the grounds that the respondent was empowered, in the exercise of its discretion, to give a warning rather than initiate a criminal prosecution as provided in the Act. The court further held that the giving of a warning in these circumstances did not amount to a conviction for a criminal offence and that the Health Professions Act was not applicable to this case. On appeal to the Supreme Court:

Held, that whilst that the matter could have been referred to the Pharmacists Council of Zimbabwe in terms of the Health Professions Act for the necessary disciplinary action to be taken against the appellant, it was clear that the respondent had exclusive jurisdiction on matters of licensing. The respondent was authorized, following an inquiry, either to suspend or to cancel a licence previously issued. It therefore had the jurisdiction to investigate, inquire into matters related to the licensing of premises and after due consideration to make a determination as to whether the conduct which is the subject of the enquiry warrants the suspension or cancellation of a licence. There was no basis for arguing that the respondent should not have undertaken the inquiry that it did and that the matter should have been referred to the Pharmacists Council.

Held, further, as to whether the respondent was empowered to give a final warning, that where a statutory body has been created for a particular purpose with defined powers, only such powers can be implied which are reasonably ancillary to those defined powers to enable the statutory body to carry out the objects for which it was created. Those things which can be construed as incidental to and may reasonably and properly be done under the main purpose, though they may not be literally within it, would not be prohibited. The power to suspend or cancel a licence is a drastic power that must necessarily incorporate the power to issue a warning that in the event of a recurrence the licence may in future be cancelled or suspended. Such a warning is not a penalty but part of the regulatory powers reposed within the authority to ensure that any conditions to which a licence may be subject are complied with.

Held, further, that there was no breach of the nemo judex in sua causa rule. The hearing was not a disciplinary hearing and the inspector did not take part in the Committee's deliberations.

Held, further, that as to whether there was a breach of the requirement that a licensed pharmacy must be under the "continuous personal supervision" of a licensed pharmacist, the ordinary grammatical meaning of the words is that the person who is licensed for the premises must without break or interruption personally superintend the operations of the pharmacy. Such an interpretation does not result in an absurdity. Medicines and similar substances can be very dangerous if they fall into the wrong hands or are dispensed without proper instructions. For this reason, it is inconceivable that a pharmacy could open for business for a day in the absence of a licensed pharmacist. Who would ensure that the dispensing of medicines is done correctly during that day? It is clearly understood by persons who operate in this industry that there has to be a licensed pharmacist in attendance all the time. Should the licensed pharmacist not be available for any reason, arrangements must be made for another licensed pharmacist to stand in. As long as the licensed pharmacist has to go away from the premises of the pharmacy, then another licensed pharmacist has to stand in for him.